- The proposals represent a marked shift away from the focus on competition that underpinned the coalition government’s 2012 reforms, towards a new model of collaboration, partnership and integration. At the same time, removing some of the competition and procurement rules could give the NHS and its partners greater flexibility to deliver joined-up care to the increasing number of people who rely on multiple services.
- Unlike previous reforms, the proposed legislation aims to avoid a one-size-fits-all approach and leaves many decisions to local systems and leaders. This is appropriate given the great variation across England in terms of history, demography and local health challenges.
- It is also important to recognise the limitations of what legislation can achieve. It is not possible to legislate for collaboration and co-ordination of local services. This requires changes to the behaviours, attitudes and relationships of staff and leaders right across the health and care system, including within the national bodies. This makes the implementation plan very important, especially as the legislation leaves so much to local (and national) discretion.
- Some of the proposals seek to give ministers far greater powers over NHS England and other arm’s length bodies. While it is right to clarify who is accountable for the health service, the government should protect the day-to-day clinical and operational independence of the NHS. Similarly, the proposal to give ministers the power to intervene earlier in local decisions about the opening and closing of NHS services risks politicising local service decisions.
- While legislative changes are needed to progress the integration agenda further and faster in the interests of improving care for patients, these proposals come at a time when the NHS, local authorities and voluntary sector organisations are still battling Covid-19. In implementing these proposals, health and care services must not be distracted from dealing with the crisis at hand.
- Finally, while there is much to welcome in the White Paper, the health and care system faces many challenges that will not be addressed by these proposals, including chronic staff shortages, deep health inequalities and an urgent need for long-term reform of social care. There is a pressing need for the government to chart a way out of these deep-seated challenges.
Working together and supporting integration
At the heart of the changes set out in this section is the proposal to establish integrated care systems (ICSs) as statutory bodies in all parts of England. ICSs will be made up of two parts – an ‘ICS NHS body’ and an ‘ICS health and care partnership’. The dual structure is a new development and recognises the two forms of integration that are needed to adopt a population health approach aimed at improving the health and wellbeing of local populations: integration within the NHS (between different NHS organisations) and integration between the NHS and local government (and wider partners).
- The ICS NHS body will be responsible for NHS strategic planning and allocation decisions. It will be set a financial allocation by NHS England to cover the majority of NHS care for its population and will be accountable to it for NHS spending and other financial objectives at a system level. It will be required to develop a plan to meet the health needs of its population and develop a capital plan for the NHS providers within its footprint. To enable it to fulfil these requirements, it will merge some of the strategic planning functions currently being fulfilled by non-statutory ICSs or sustainability and transformation partnerships (STPs) with the functions of clinical commissioning groups (CCGs), which will be abolished, with their staff transferring over to the ICS NHS body. The ICS NHS body will not have any powers to direct NHS trusts or foundation trusts – these will remain separate statutory bodies. The ICS NHS board will be made up of, as a minimum, a chair, a chief executive and representatives from NHS trusts, general practice and local authorities. Other members can be determined locally.
- The ICS health and care partnership will be responsible for developing a plan to address the system’s health, public health and social care needs, which the ICS NHS body and local authorities will be required to ‘have regard to’ when making decisions. The membership of the partnership and its functions will not be set out in legislation – instead, local areas will be given the flexibility to appoint members (likely to be from the wider system – eg, Healthwatch, voluntary and independent sector providers, and social care providers).
The document also recognises the importance of ‘place’, which is a smaller footprint than that of an ICS, often that of a local authority. Experience suggests that much of the heavy lifting of integration and improving population health is driven by organisations collaborating at this level, and successful ICSs have therefore often concentrated their efforts on developing the places within their footprint. The Department states that it has decided against giving place a statutory underpinning although it is explicit that there will be an expectation that ICS NHS bodies delegate ‘significantly’ to place level as well as to provider collaboratives. The development of place-based partnerships will therefore be left to local determination, building on existing arrangements where these work well. ICSs will be expected to work closely with health and wellbeing boards and required to ‘have regard to’ the joint strategic needs assessments and joint health and wellbeing strategies produced by health and wellbeing boards.
These forms of collaboration and integration will be supported by a range of other measures, including: a duty to collaborate across the NHS and local government; a shared duty on all NHS bodies to pursue the ‘triple aims’ of the NHS Long Term Plan (better health and wellbeing, better quality health care and ensuring the financial sustainability of the NHS); and a duty on NHS trusts and foundation trusts to ‘have regard to’ the system’s financial objectives. The legislation will also be amended to assist organisations by enabling decisions to be taken by joint committees and to facilitate increased ‘collaborative commissioning’ across different footprints, for example, by enabling NHS England to share some of its direct commissioning functions with ICSs.
Finally, the government will be given a new ‘reserve’ power to impose capital spending limits on individual, named foundation trusts that are not working to prioritise capital spending within their ICS. There are also a number of proposals aimed at preserving patient choice rights and protections, including bolstering the process for any qualified provider (AQP) arrangements.
This section of the White Paper contains a number of proposals aimed at changing how competition law applies to the NHS, how procurement works and how the payment system operates.
First, there are a number of changes that would remove competition as an organising principle in NHS clinical care. These include removing the Competition and Markets Authority’s (CMA) role in reviewing mergers involving NHS foundation trusts and allowing NHS England to oversee these instead, alongside removing NHS Improvement’s competition functions.
Similarly, the proposed changes to procurement seek to reduce transaction costs and give NHS and public health commissioners greater flexibility over when to use competitive procurement processes when purchasing health care services. These include removing the commissioning of NHS and public health services from the scope of the Public Contracts Regulations 2015, to be replaced by a bespoke NHS provider selection regime and a new duty on commissioners to act in the best interests of patients, taxpayers and their local populations. The procurement of non-clinical services (eg, professional services such as consultancy) will remain subject to public procurement rules.
Continuing recent trends, there are a number of changes proposed to how the national tariff payment system works, aimed at streamlining the pricing process and supporting a shift away from activity-based payments towards a model that facilitates greater collaboration and a focus on population health. The changes include removing the requirement on providers to apply to NHS Improvement where they wish to make local modifications to tariff prices.
This section includes a proposal to give the Secretary of State the power to create new NHS trusts ‘to provide integrated care’ and potentially in other circumstances subject to appropriate consultation.
There is also a proposal to remove local education and training boards (currently statutory sub-committees of Health Education England) from statute, with the aim of giving Health Education England more flexibility to adapt its regional operating model over time.
Improving accountability and enhancing public confidence
This section of the White Paper sets out a range of legislative proposals aimed at formalising the merger of NHS England and NHS Improvement and strengthening ministerial control over national bodies and service reconfigurations.
First, it recognises the work already undertaken to bring together NHS England and NHS Improvement into a single organisation and places it on a statutory footing by abolishing Monitor and the NHS Trust Development Authority (the two bodies who work together under the name NHS Improvement) and transferring their functions to NHS England. This body will now be formally considered to be responsible for providing ‘unified, national leadership for the NHS’.
In recognition of the increased range of functions this newly merged body will have, the White Paper proposes changes to ensure the Secretary of State has ‘appropriate’ and ‘structured’ intervention powers over NHS England. Little detail is provided on how these powers will work, although it is suggested that they will continue to maintain the clinical and day-to-day operational independence of the NHS and that under the new arrangements, ministers would remain unable to direct local NHS organisations or intervene in individual clinical decisions.
Linked to the above, this section includes a proposal to change the frequency with which the Secretary of State is required to publish the NHS Mandate – the document that sets out the objectives that NHS England is expected to achieve. Instead of needing to publish the Mandate on an annual basis (as is currently the case), the requirement would be to always have one in place, creating the flexibility for ministers to update it more frequently or leave it in place for multiple years as they consider appropriate.
In response to concerns that local service reconfigurations can be complex and protracted, the Department proposes legislating to give the Secretary of State the power to intervene in reconfigurations at any point with a view to speeding up decision-making. The current process for contested reconfigurations, including the Independent Reconfiguration Panel, would be removed and replaced with a new process underpinned by statutory guidance. When using this power, the Secretary of State would be required to seek appropriate advice before intervening, and to publish it subsequently.
To ‘allow the system to adapt and shift to changes in priorities and focus over time’ this section proposes to establish a new power in primary legislation that would allow the Secretary of State to transfer functions to and from specified arm’s length bodies and to abolish arm’s length bodies where they become redundant as a result of any such transfers. It is suggested that there are no immediate plans to use this power and that before any use in the future, formal consultation would be required.
There is also a proposal to remove from the legislation the three-year time limit for any special health authority established after 2012. Under the current arrangements, the Secretary of State is required to review and formally extend the existence of any such special health authorities every three years.
The final proposal in this section would place a new duty on the Secretary of State to publish a report every parliament that sets out the roles and responsibilities for workforce planning and supply and would cover the NHS (including primary, secondary, and community care) as well as sections of the workforce that are shared between health and social care (eg, registered nurses).
The final section of the White Paper sets out a range of specific and targeted proposals relating to social care, public health, and quality and safety, described as ‘appropriate… in light of the experience of the pandemic, and the desire to support the health and care system to recover and reform’.
In recognition of the increasing numbers of people who need adult social care and the consequent need for greater oversight of the provision and commissioning of services, the White Paper proposes introducing a new duty for the Care Quality Commission (CQC) to assess how local authorities are meeting their adult social care duties, and a new power for the Secretary of State to intervene where CQC considers a local authority to be failing to meet these duties. To support this increased oversight, the Department is also proposing changes to the types of data it collects centrally from the sector and the frequency with which it collects it.
Learning from the experience of the pandemic, when it was necessary to provide support to the social care provider sector at speed, the Secretary of State’s current power to make direct payments to not-for-profit social care providers will be expanded to include any type of provider.
Other proposed changes include introducing a legal framework for the ‘discharge to assess’ model so that assessments can take place after an individual has been discharged from acute care (replacing the current requirement to assess before discharge) and a small technical change to the Better Care Fund to separate it from the process for setting the NHS Mandate (which will no longer be set on an annual basis).
The White Paper proposes giving the Secretary of State the power to direct NHS England as to the public health services it commissions (which range from national immunisation programmes to sexual assault services).
There are also several proposals to legislate for commitments made in the government’s obesity strategy, aimed at enabling it to achieve its commitment to halve childhood obesity by 2030. The first is to give ministers the power to introduce new labelling requirements to support more informed consumer choice. The other proposed changes seek to increase restrictions both on the advertising of foods high in fat, sugar or salt on TV before 9pm and on the advertising of these products online.
The White Paper also proposes changes that would move the responsibilities for initiating schemes for water fluoridation from local authorities to the Secretary of State.
Safety and quality
There are a number of proposals aimed at improving the quality and safety of services, including placing the Health Services Safety Investigations Body on a statutory footing; establishing a statutory medical examiner system to scrutinise all deaths not involving a coroner; enabling the Secretary of State to set minimum statutory standards for food and drink provided in hospital settings; and giving powers to the Secretary of State that would enable them to reform the system of professional regulation. Further regulatory change will enable the MHRA to set a national medicines registries, and legislation will be put in place to enable the implementation of comprehensive reciprocal health care agreements with other countries.
Reflecting on the proposals
Overall, there is much to welcome in the ambition of the White Paper. The proposals represent a shift in emphasis towards more integrated working, seeking to enable local collaboration and removing some of the main barriers to partnership-working. Many of the proposals are widely supported within the NHS and by stakeholders. To ensure widespread public support, it will also be important to develop a strong narrative around the benefits the reforms will bring to patient care.
At the same time, however, in addition to the specific points raised in the sections above there are a number of general issues that should be considered at this point, before the legislation enters parliament and during its passage.
Timing of the legislation
These proposals amount to a significant reform package and come at a time when the NHS, local authorities and voluntary sector organisations are still battling Covid-19. The legislation will mean a lot of change for commissioning bodies and their staff in particular, with CCGs coming to an end and their functions being folded into ICSs. Given that previous attempts at reorganisations have tended to overstate the benefits and understate the cost and disruption of change, a careful approach to implementation will be needed in order to avoid these recurring pitfalls.
The limitations of what legislation can achieve
It is important to recognise the limitations of what legislative change can achieve. The proposals represent a welcome shift in emphasis towards more integrated working, but this will be critically dependent on new collaborative ways of working between organisations, leaders and teams across health and care. While legislation can remove some barriers to collaboration and co-ordination of local services, it will not deliver the changes in behaviour that are needed to fully harness the benefits of the integration agenda. Instead, behaviours and relationships that support collaboration will need to be developed, nurtured and modelled right across the health and care system, including within national bodies. Consideration should be given to how this cultural change will be supported, and how staff at all levels will be supported to genuinely collaborate across organisational and professional boundaries.
Nature of the legislation
Throughout the White Paper, there is a tendency towards creating broad enabling powers for the Secretary of State, for example, over arm’s length bodies. It is suggested that these are needed to enable the Secretary of State to respond more flexibly to rapidly changing circumstances, such as those seen during the pandemic. However, it does not make clear why such powers would be needed outside of a pandemic, nor why reducing parliamentary involvement in this way is merited.
These proposals will change the nature and extent of parliamentary scrutiny of the NHS, with a significant shift from primary to secondary legislation. More power is being moved from previously independent arm’s length bodies to the Secretary of State while at the same time, the Secretary of State will be subject to less parliamentary scrutiny of their actions. It will be important to debate these issues as the Bill progresses through parliament.
Health and care system reform in totality
While the White Paper includes some limited, targeted changes to public health and social care, the proposals predominantly amount to reforms of the NHS – with a focus on integrating services, collaborating better with other partners and the relative balance of power between national players. The Department of Health and Social Care is clear that the White Paper is not intended to be the place to set out reforms to the structure of national, regional and local public health systems in light of Public Health England’s abolition, or to commit to the long-promised and much overdue plans to reform the adult social care system.
The NHS doesn’t work in isolation – public health, social care and the NHS are closely connected. There is clearly a risk that in setting out fixed plans for the NHS, the options for public health and social care reform become limited. A clear overall vision for all three arms of the health and care system at national, regional and local levels would help position the NHS reforms within the wider picture, and ensure that the NHS reforms do not inadvertently limit positive change in public health and social care.
With thanks to
The authors extend their thanks to colleagues across The King’s Fund who have contributed to shaping this long read, including: Anna Charles, Alex Baylis, Siva Anandaciva, Simon Bottery, Dave Buck.
We have been developing proposals for the integrity of Social Care, Health and Hotels utilising the airspace over the surface car parks of NHS Hospitals throughout the UK. The developments would be a Partnership with the NHS
I see nothing in the legislation proposals that provide a mechanism to receive Public Opinion, Input and Scrutiny. Are the current Public Engagement mechanisms to continue or is a new structure expected or has the matter been simply overlooked?
I find the proposed change to a "discarge to assess" process very concerning. In my mental health involvement experience, the current discharge planning prior to discharge is frequently totally ineffectual and, as I have been told by several family carers, 'Not worth the paper it is written on'. The end result is that individuals drop off the radar with little or no help for ongoing support. If there is no requirement for service providers to produce a clear and workable discharge plan while someone is in their care, does this not pave the way for an "out of sight, out of mind" culture of thinking? For me, this seems a step away from person-centred and a step towards devising a process that benefits the provider more than the patient.
I’m disappointed by the Kings fund in that it doesn’t recognise unpaid carers, nor does the white paper. We are recognised in legislation and in guidance for all statutory agencies including the NHS Consitution, By not recognising carers, the white paper will fail to value and support the contribution and needs of carers in commissioning of services specifically tailored to the needs of carers and young carers . The white paper will perpetuate the injustice and inequality that carers suffer every day. I am also disappointed because about 30 years ago the Kings Fund was an early ambassador for the rights of carers, spearheading work to raise awareness of carers needs and rights in its key 10 point plan for carers.